Among the most important — but also most subtle — of the arguments made in support of increased flow to the windward side is that natural flows in streams are part of the public trust. As such, the argument continues, they may not be diminished absent a compelling reason.
Under the public trust doctrine, one of government’s most important functions is protecting the resources essential to fishing, navigation, and commerce. Over the years, courts have expanded these trust responsibilities — have “walked them up the beach,” as Joseph Sax, an expert on the public trust doctrine, has said — to include non-navigable streams, underground waters, beach access (as necessary for the public’s enjoyment of the public trust resources), and habitat for birds and marine life.
In the case of Waiahole ditch, the public trust resources at stake include, at a minimum, not only the fish in windward streams, but also the fishery resources in Kane`ohe Bay that flourish when streams are healthy. Jim Paul, an attorney representing Hawai`i’s Thousand Friends in the contested case hearing, notes that in Hawai`i, the Water Commission is responsible for protecting the public trust not only as it may be set out in the Water Code, but also as it is outlined in Article IX, § 1 of the state constitution (“All public natural resources are held in trust by the state for the benefit of the people”) and Article XI, § 7 (“The state has an obligation to protect, control, and regulate the use of Hawai`i’s resources for the benefit of its people … [and] protect ground and surface water resources, watersheds, and natural stream environments”).
Public Trust as Luxury
In his cross-examination of Gregory Pai, the then-director of the Office of State Planning who testified in favor of the leeward parties, Paul asked if the OSP was the state agency that bore ultimate responsibility for taking public trust issues into account in developing long-term plans.
“Yes,” Pai responded.
Paul: … You have stated that the administration believes that the continued retention of Waiahole Ditch water for agriculture is in the state’s best long-term economic interest.
Paul: … Do I understand that that decision is not based on an analysis of the Public Trust Doctrine responsibilities, is that correct?
Pai: Well, it would be — that would be — yes, I guess that would be correct.
After further questioning by Paul, Pai stated that he felt that the current state administration did have “a concern for the environment” and for “maintaining public resource, public trust values.”
But in times of economic hardship, he added, the relative value of public trust responsibilities must be weighed against those of economic development. “I think it would be irrelevant to have a beautiful environment if you have a society that didn’t exist simply because they all died for lack of sustenance,” he said. “So you have to have your basic values to keep your people alive. And I think that basically, that’s where the state government is coming from.
“And I think that possibly, also, if I may add just from an economic perspective, that the balance of values does sometimes tend to shift, given where we are with respect to relative prosperity.
“If we tend to be more prosperous in the time of economic prosperity, you can afford to give more valuation to public trust resources. And I think this is a natural response.
“When times are bad and people don’t have jobs and unemployment is high, it is the duty of government to pay more attention to the economic health of society. And I think that, under the current administration and the current period that we are in historically with respect to the business cycle, I don’t think it’s surprising that our concern is with economic development values.”
Economics Above All
Alan Oshima, attorney for Waiahole Irrigation Company, made much the same point in his opening argument: “Our position is that a permit application for agricultural water clearly must be given precedence for water in our situation… We do not believe that the code requires you to, quote, divide the water in this case, and in fact we believe that it leans towards not dividing the water and providing it for the maximum beneficial use, as we’ve applied for.”
To restore water to Waiahole Stream, Oshima continued, “would be unreasonable,” absent compelling evidence that the “status quo,” which he defined as the situation existing before any waters were returned to Waiahole Stream, “must be changed now or irreparable harm will result.”
Water Commissioner Lawrence Miike asked Oshima if he would go so far as to say that “it’s always the economic impact that outweighs all of the other interests.”
“The economic impact, yes,” Oshima answered.
“Is there a limit, then,” Miike asked, “to the economic impact? Because you seem to be heading toward no limit?”
In response, Oshima acknowledged that the Water Code required the commission “to provide adequately for other interests,” but in the end, the balance was weighed more toward economic uses.
The argument that the flow in the ditch was the “natural” state was made most forthrightly by Jack Keppeler, former deputy director of the Department of Land and Natural Resources. Keppeler, who must bear much of the blame or credit for involving the state as a contestant to these proceedings in the first place, told the Water Commission back in June 1994 that “the state has an interest in the natural resource known as the Waiahole Irrigation Company.”
Up Against Limits
Pai’s comment that the public trust resources are a luxury in times of economic hardship, Oshima’s reading of the code as giving paramount importance to economic uses, and Keppeler’s extreme view of an entirely artificial water conveyance as a “natural” system, contrast sharply with the remarks of Bill Devick, acting administrator of the Department of Land and Natural Resources’ Division of Aquatic Resources.
In his testimony to the Water Commission, Devick stated repeatedly his view that it was wrong to place an economic value on public trust resources — and that if this were to be done, the public trust would inevitably be eroded in favor of private interests.
Paul, the attorney for Hawai`i’s Thousand Friends, questioned Devick about an article he had written, “The Importance of Stream Beings,” that appeared in the November 1994 edition of `Elepaio, the publication of the Hawai`i Audubon Society:
Paul: Near the end, in the last few paragraphs of that article, … you say — and I quote — ‘the prevailing public view of natural resources as being free for the taking. Be it fish or water, there is an unwillingness to pay for their exploitation.’ Close quote. Does that statement apply to the situation that is before us here, in your view?
Devick: Yeah, I think so.
Paul: You also state, and I quote, ‘there has not been a serious willingness to admit that the real but hard-to-quantify costs of the impact on natural resources should be factored into the equation.’ Close quote. That is your view?
Under questioning from Water Commissioner Richard Cox, Devick amplified his views on the state’s responsibility to protect natural resources:
Cox: I guess the question I have is, I know you’re familiar with the Water Code, which says the commission has to balance the needs of offstream versus instream uses. Do you have any advice as to how the commission can balance between these instream values that you’ve been talking about, without any — without quantifying them, and the offstream needs for agriculture on Leeward O`ahu…?
Devick: … I think there may be a deeper question here, and that is, there are limits to everything. There are limits to growth, there are limits to population. And in establishing limits, there have to be some things which are set aside as absolutes. And one of those absolutes … needs to be the basic biological resources, not only for the purpose of the resources, but for the purposes of carrying out the constitutional mandate for Native Hawaiian rights.
“If everything always is reduced to an economic trade-off, I think ultimately these resources … in the usual dollar terms, they are not only hard to quantify, but, in our term dollars, aren’t very high. Those resources are going to lose out, and ultimately, then, what needs to be done at some point is to say we have to keep A, B, or C, or whatever it would be. And I think this is what we’re looking at in the case of Waiahole, because we’re talking in part about not only restoring resources, but at least helping to maintain some traditional culture.
“Somebody has to make the decision at some point that these things have to be done because they have value. And if you look again at the need to protect existing agriculture or protect an open environment — in this case, it’s agriculture on the `Ewa Plain — it would seem that it would be in the interest of the state to provide that kind of protection and support. But it should not be at the expense of a resource which is a potentially valuable resource on the windward side.”
Don Heacock, a biologist for the Division of Aquatic Resources on Kaua`i, brought out another point in his testimony on the benefits of restoring natural flows in streams. “A really important thing that’s often forgotten about in instream flow benefits to society is referred to often as existence benefits. The first time I heard that, I had no idea what the person was talking about until I read on. Existence means just that they’re there. Not necessarily for our lifetimes, but for perhaps our great-great-grandchildren’s lifetime. Existence benefits are often weighed or measured in terms of a person’s or society’s willingness to pay.
“And one of the most significant published reports on existence benefits was done in the state of North Carolina, where it actually went on the ballot for the voting public… The question on the ballot was, ‘We still have some free-flowing streams that are undiverted; should we divert them, or should we protect them for future uses?’ And the voters almost unanimously voted for protecting them.”
Volume 7, Number 3 September 1996